Citation Nr: 0106686
Decision Date: 03/07/01 Archive Date: 03/16/01
DOCKET NO. 99-06 146 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUES
1. Entitlement to service connection for left wrist
synovitis with early degenerative joint disease.
2. Entitlement to an evaluation in excess of 10 percent for
service-connected residuals of a left hand shell fragment
wound.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
C. Kedem, Associate Counsel
INTRODUCTION
The veteran had active military service from November 1966 to
November 1968. This matter comes to the Board of Veterans'
Appeals (Board) from a November 1998 rating decision of the
Department of Veterans Affairs (VA) Portland Regional Office
(RO) which denied service connection for left wrist
synovitis, with early degenerative joint disease, and
declined to grant an evaluation of greater than 10 percent
for service-connected residuals of a left (major) hand shell
fragment wound.
FINDING OF FACT
The veteran's left wrist synovitis with early degenerative
joint disease is shown to be likely linked to in-service left
hand injury.
CONCLUSION OF LAW
Resolving the benefit of the doubt in the veteran's favor,
his left wrist disability was incurred in active service.
38 U.S.C.A. § 1110 (West 1991); Veterans Claims Assistance
Act of 2000, Pub. L. No. 106-475, § 4, 114 Stat. 2096, 2098-
99 (2000) (to be codified as amended at 38 U.S.C. § 5107);
38 C.F.R. §§ 3.102, 3.303 (2000).
REASONS AND BASES FOR FINDING AND CONCLUSION
Service medical records indicate that the veteran sustained a
shell fragment wound to the left hand in June 1967. He had
surgery in September 1967 after persistent complaints of pain
and numbness in the third and fourth fingers and the palm of
the left hand. An October 1967 notation indicates that the
surgical wounds were healing well, but that the he continued
to exhibit his pre-operative symptoms. A consultation report
dated in late October 1967 indicates that he regained full
function of the left hand and was able to return to full
duty. A September 1968 service discharge examination
indicates that the upper extremities were normal.
An April 1969 radiologic report indicates two small metallic
fragments in the palm of the left hand anterior to the
proximal shaft of the third metacarpal bone. The report
indicates no evidence of bone damage.
In a March 1981 letter from the veteran, he asserted that he
has continued pain and other symptoms such as weakness and an
inability to be fully productive at work. A March 1981
letter from a colleague at his workplace recounts that the
veteran has had trouble at work at a paper mill, which
entails manual labor. On several occasions, he noticed the
veteran rubbing his hand and "showing signs of pain."
An October 1998 radiologic report indicates no significant
bone abnormalities and that wrist joint spaces appear
maintained.
An October 1998 VA medical examination report reflects that
left wrist flexion of zero to 80 degrees, extension of zero
to 60 degrees, radial deviation of zero to 15 degrees, ulnar
deviation of zero to 45 degrees, forearm pronation of zero to
90 degrees, and supination of zero to 90 degrees. The
examiner found slight carpal tunnel signs in the left wrist.
No swelling of the wrist was noted.
The examiner diagnosed chronic synovitis and early
degenerative arthritis in the left wrist with a 30 percent
decrease in range of motion. The wrist condition disability
entails slight degenerative squaring at the edges of the
joint. The examiner opined that this condition is at least
partially related to immobilization following the in-service
left hand injury.
An October 1998 neurologic examination report reveals no
Tinel's disease at the carpal or cubital tunnels.
Service connection may be granted for disability resulting
from personal injury suffered or disease contracted in the
line of duty or for aggravation of a pre-existing injury or
disease in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R.
§§ 3.303.
Service connection may also be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
In addition, service connection may be granted for a
disability, which is proximately due to, or the result of a
service-connected disease or injury. 38 C.F.R. § 3.310(a)
(2000). Moreover, where a service-connected disability
causes an increase in, but is not the proximate cause of, a
nonservice-connected disability, the veteran is entitled to
service connection for that incremental increase in severity
attributable to the service-connected disability. Allen v.
Brown, 7 Vet. App. 439, 448 (1995).
When there is an approximate balance of positive and negative
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the veteran. See
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
§ 4, 114 Stat. 2096, 2098-99 (2000) (to be codified as
amended at 38 U.S.C. § 5107). In Gilbert v. Derwinski, 1
Vet. App. 49 (1990), it was stated that a veteran need only
demonstrate that there is an approximate balance of positive
and negative evidence in order to prevail. To deny a claim
on its merits, the evidence must preponderate against the
claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing
Gilbert, 1 Vet. App. at 54.
As set forth above, the veteran was diagnosed with chronic
synovitis and degenerative arthritis in the left wrist with a
30 percent decrease in range of motion. The examiner stated
that the condition is at least partially related to his in-
service shrapnel fragment wound to the left hand. Thus,
resolving the benefit of any doubt in the veteran's favor,
his left wrist disability, to include synovitis and
degenerative joint disease, stems from an in-service left
hand injury. Veterans Claims Assistance Act of 2000, Pub. L.
No. 106-475, § 4, 114 Stat. 2096, 2098-99 (2000) (to be
codified as amended at 38 U.S.C. § 5107); 38 C.F.R. §§ 3.102,
3.303, 3.310(a)
ORDER
Service connection for left wrist synovitis with degenerative
joint disease is granted, subject to the law and regulations
governing the payment of monetary awards.
REMAND
As noted above, the veteran sustained a shell fragment wound
to the left hand in June 1967. He complained of pain and
numbness in the third and fourth fingers of the left hand and
the palm of the left hand, and had left hand surgery in
September 1967. The service medical records indicate that he
continued to complain of the above symptoms even following
surgery.
An April 1969 radiologic report indicates the presence of two
small metallic fragments in the palm of the left hand.
An October 1998 radiologic report indicates mild
osteoarthritis of the distal interphalangeal joints. Pain,
tenderness, and loss of motion were indicated in an October
1998 orthopedic examination report. An October 1998
neurologic examination revealed digital neuropathy.
Pursuant to the newly enacted Veterans Claims Assistance Act
of 2000, Pub. L. No. 106-475, § 3A, 114 Stat. 2096, 2097-98
(2000) (to be codified as amended at 38 U.S.C. § 5103A), VA
must make reasonable efforts to assist a claimant in
obtaining evidence necessary to substantiate the claimant's
claim. This includes informing the veteran of all the
evidence needed to support his claim. Additionally, VA must
assist claimants in obtaining government and private records,
and obtain a medical opinion when such an opinion is
necessary to make a decision on a claim.
In this case, clarification is needed with respect to both
the neurologic and orthopedic assessments. Although
comprehensive examination and detailed opinions are necessary
with respect to the veteran's left hand disability, the Board
requires specific information relative to the neurological
aspects of the veteran's pain, numbness, and weakness.
Regarding the orthopedic examination, the Board requires a
clearer picture of his left hand range of motion and muscle
impairment.
To ensure that VA has met its duty to assist the veteran in
developing the facts pertinent to the claim, the case is
remanded for the following development:
1. The RO must review the claims file and
ensure that all notification and
development action required by the VCAA.
In particular, the RO should ensure that
the new notification requirements and
development procedures contained in
sections 3 and 4 of the VCAA are fully
complied with and satisfied. For further
guidance on the processing of this case in
light of the changes in the law, the RO
should refer to VBA Fast Letters 00-87
(Nov. 17, 2000), 00-92 (Dec. 13, 2000),
and 01-02 (Jan. 9, 2001), as well as any
pertinent guidance provided by VA,
including, among other things, final
regulations, General Counsel precedent
opinions, and pertinent court decisions
that are subsequently issued.
2. The RO should arrange for VA medical
examination of the veteran by a
neurologist and an orthopedist. The
claims folder and a separate copy of this
remand must be made available to each of
the examiners and reviewed by each. The
orthopedic and neurologic examiners are
requested to identify the nature,
frequency, duration and severity of all
manifested orthopedic and neurologic
symptoms attributable to the veteran's
left hand disability, to include comment
as to any resulting pain and/or
functional loss, and provide an opinion
as to whether the physical limitations
claimed by the veteran are consistent and
proportionate to the pathology shown on
examination and in the evidence of
record. The orthopedic examiner should
assess the specifics of limitation of
motion, if any, to include whether any
limitation of motion prevents flexion of
the fingertips to within two inches of
the median transverse fold of the left
palm as well the affects of scarring.
The neurologic examiner should discuss
whether nerve damage, if any, is related
to the veteran's in-service left hand
shrapnel wound and/or surgery and whether
subjective complaints of pain, numbness,
and weakness are etiologically related to
his in-service injury and/or surgery.
The two examiners are additionally
requested to comment on the impact of the
veteran's service-connected left hand
disability and to opine whether any other
currently diagnosed manifestations are
etiologically related to his service-
connected left hand disability.
3. The RO should review the claims file
to ensure that all of the above requested
development has been completed. In
particular, the RO should ensure that the
requested examination and opinion are in
complete compliance with the directives
of this remand and, if they are not, the
RO should take corrective action. See
Stegall v. West, 11 Vet. App. 268 (1998).
After undertaking any additional development deemed
appropriate in addition to that requested above, the RO
should re-adjudicate the issue of entitlement to an increased
rating for service-connected residuals of a left hand shell
fragment wound. If the benefit sought on appeal remains
denied the veteran should be furnished a supplemental
statement of the case and be given the opportunity to
respond. The veteran has the right to submit additional
evidence and argument on the matter remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the Court for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 2000) (Historical and Statutory Notes).
J.F. Gough
Member, Board of Veterans' Appeals